I Spy Something Read! Employer Monitoring of Personal Employee Webmail Accounts

Abstract

n employee arrives at work, logs onto Hotmail, types a quick message to his wife, sends a quick e-mail to friends about catching tonight’s game at the bar, and forwards the latest joke that is a little risqué. This type of e-mail use is common in corporate America among employers of all sizes. However, use of personal e-mail at work is no minor distraction. Consider an average size company of 1,000 employees—if the employees spend only one hour of each day on the Internet or using e-mail, the cost to the company could be greater than $35 million dollars in lost productivity in one year. Major companies such as Xerox, the New York Times, Chevron, and Microsoft have been forced either to fire employees or settle lawsuits relating to e-mail use at work. Recently, employees have shifted to using personal, web-based emails at work. Recognizing these problems, employers are now using surveillance software, known as “spyware,” that can “capture every keystroke a user types at a computer, or take screen shots at regular interval[s] of everything a computer user does. [This] include[s] logging Web-based e-mail activity.”

This Recent Development focuses on a specific type of surveillance: private employers’ monitoring of their employees’ personal webmail accounts, such as Yahoo or Hotmail. First, this Recent Development reviews two recent district court decisions that involve employee use of web-based e-mail accounts at work. The Recent Development then argues that given the unsettled state of the law of employer e-mail surveillance of webmail, the courts should expand the laws allowing employer monitoring to explicitly include personal employee webmail accounts accessed by employees on company computer networks or Internet connections. Finally, this Recent